Two Iowa companies are accused of exploiting an H-2A worker by forcing him to drive trucks rather than perform agricultural work in a scheme that involved dozens of South African workers.
On Nov. 15, Carel Hanekom filed a lawsuit against Kuchenbecker Excavating and H&S Farms – Livestock in an Iowa federal court. Hanekom is accusing the two companies of making him perform work that was not consistent with his H-2A visa.
The lawsuit explains how the two companies lied about H-2A work in order to get workers to perform other work at a cheaper rate. Additionally, the complaint claims that the two companies worked together as one company in order to cheat the temporary work provisions.
H-2A visas
Kuchenbecker Excavating and H&S Farms’ alleged scheme was based on the U.S. Department of Labor’s H-2A visa program.
According to the Department of Labor’s website, the H-2A program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.
Before an H-2A visa is granted, the Department of Labor must determine the following:
- There are not sufficient able, willing and qualified U.S. workers available to perform the agricultural labor or services of a temporary or seasonal nature for which an employer desires to hire temporary foreign workers.
- The employment of the H-2A worker will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.
To determine wages, the Department of Labor publishes adverse effect wage rates for each state. In Iowa, that rate was $15.37 in 2021, $16.19 in 2022 and $17.54 in 2023.
Additionally, employers are obligated to provide H-2A workers with “with three meals a day or must furnish free and convenient cooking and kitchen facilities to the workers that will enable the workers to prepare their own meals.”
H-2A visas are temporary, and employment under the program is not to last more than a year.
No agricultural work performed
Hanekom was hired as an H-2A worker by Kuchenbecker Excavating, but his job duties were far from what was promised.
According to the complaint, Hanekom left his home in South Africa to work for Kuchenbecker Excavating, based in Rake, Iowa, in July 2021. The H-2A was valid from January 2021 through August 2021.
Hanekom was promised a wage rate of $17 per hour to perform agricultural work. Specifically, he was to help with seasonal work that included hauling and spreading chicken manure on fields.
However, Hanekom never performed any agricultural work. Rather, he drove a truck, intrastate and interstate, hauling loads of construction materials for nonagricultural construction projects.
Because Hanekom was driving hundreds of miles from Rake, Iowa, he spent the majority of nights in hotels. All of the hotels where he stayed lacked free and convenient cooking and kitchen facilities. Consequently, he used his own funds to buy meals. Additionally, he had to use his own funds for every trip he made to the grocery store. Neither of those expenses were reimbursed.
In order for Hanekom to drive a truck, the companies would need to apply for an H-2B visa, which allows seasonal work for nonagricultural purposes. By hiring Hanekom as an H-2A employee, the companies were able to pay him at a much lower rate.
If hired as an H-2B worker, Hanekom was entitled to a pay rate of $25.30 per hour. Instead, he made far less by being paid the adverse-effect wage rate of an agricultural worker.
Scheme to circumvent H-2A requirements
In addition to lying about the agricultural operations, both companies created a scheme that employed an H-2A worker for several years rather than seasonally.
In its application, Kuchenbecker Excavation noted that work duties included the spreading of chicken manure on fields. H&S Farms indicated that work would include assisting with livestock feeding. However, neither company had any agricultural operation.
“In fact, defendants could not have employed (Hanekom) or anyone else to perform such duties, because there is no livestock feeding operation at H&S Farms – Livestock, LLC,” the lawsuit states. “During his entire time working for defendants under the job orders submitted by H&S Farms, (Hanekom) never encountered any cattle or livestock.”
The lawsuit alleges that the livestock feeding operation served as a front for a nonagricultural, year-round trucking enterprise. In fact, the lawsuit further claims that the two companies essentially operated as one entity, using two companies to circumvent time limits on H-2A visas.
Kenneth Kuchenbecker operated Kuchenbecker Excavation, while his daughter, Heather Smidt, operated H&S Farms. The two would switch between H-2A visas to give off the appearance of temporary work.
According to the lawsuit, the two companies filed five job orders with the Department of Labor:
- Kuchenbecker Excavating job order from Jan. 1, 2021 to Aug. 30, 2021
- H&S Farms job order from Aug. 1, 2021 to Jan. 31, 2022
- Kuchenbecker Excavating job order from March 8, 2022 to Aug. 30, 2022
- H&S Farms job order from Aug. 1, 2022 to Jan. 31, 2023
- Kuchenbecker Excavating job order from Jan. 1, 2023 to Aug. 30, 2023
When Kuchenbecker Excavating’s first job order was set to expire, Hanekom began work under H&S Farms’ job order. The two companies then repeated this cycle, allowing Hanekom to work well beyond the seasonal limit set by the Department of Labor’s H-2A program. He performed the same trucking duties under both companies year-round.
Pattern of exploitation
Hanekom was not the only H-2A worker hired by the two companies.
According to the lawsuit, both companies submitted multiple temporary employment certification applications through the H-2A program. In total, they have filed more than 12 H-2A applications that have brought exclusively South African workers on job orders from 2018 through the present.
During that time period, more than 40 of those H-2A workers have left the job before the end of their contracts due to harm they suffered from the companies’ multiple fraudulent misrepresentations in the job orders, according to the lawsuit. LL
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